Peter Wolf / Capstone Photography

Please post a link to the patent for this detailed, unique and non-obvious process you've developed. I have no knowledge of your process, but it is obvious to me that it is a simple matter to take a digital photograph, upload it to a folder on a server, where a background program or constantly-recycling batch process adds the new photos to a catalog along with a thumbnail and the timestamp extracted from the exif data, while a human being comes along later to determine and key-in the bib number, and then add that to a gallery with a search widget.

The fact that you were the first to consider doing this is more likely a coincidence of timing than anything else. The Internet was just reaching critical mass and digital photography replacing film in 1999. I am fairly certain that anyone with a modicum of computer knowledge and interest in sports events photography would readily and independently come up with the same ideas -- and apparently they have. On the face of things, the only thing you've seen to have done that's unique and non-obvious is spend thousands of dollars on obtaining ridiculous patents for the sole purposes of restraint of trade and SLAP-style litigation.

I am going to file a patent on how a person cleans their butt after defecating. It will describe how much toilet paper must be removed from the roll, +/- standard deviation for estimating error and adjusted for single-ply versus two-ply, quilted versus non-quilted. It will specify different methods by which the toilet paper may be folded, wrapped or bunched-up to address various comfort and hygienic preferences, proper disposal techniques, and safe paper capacity for various toilet designs before clogging might occur.

Given the variables involved and lacking any documented proof of prior art, I am certain USPTO will grant my application.

Photo509 wrote in post #16800821The USPTO has strict guidelines of determining that something is obvious or not. My patented claims did not meet those obvious criteria and therefore they were issued to me. At a minimum I would expect others to respect those decisions and inquire about licensing.

Fair enough. To be clear, my argument isn't really with you, and I will simply stand aside and watch the outcome of your argument with Capstone.

My argument is with the USPTO really. I disagree with their 'strict guidelines' as you put it because I think they grant a lot of patents that should not exist.

It's a bit of an interesting political question, because patent reform has very broad spectrum political support among liberals and libertarians alike. But it has just about zero momentum because most voters have no interaction with patents and don't really know how the system works and how it's being used currently. I've seen the abuse of the patent system reported in the news, and I'm sure it generates about 60 seconds of outrage before the average voter forgets all about it.

I write and interact with patents a lot, and I can tell you that a lot of the patents that we write in my business are just defensive. We file patents or sometimes just publish really basic ideas in order to prevent patent trolls from seeing what we are making, then patenting it and trying to extort us for money. It's kind of a plague on the whole auto industry.

JeffreyG wrote in post #16801013My argument is with the USPTO really. I disagree with their 'strict guidelines' as you put it because I think they grant a lot of patents that should not exist.

I write and interact with patents a lot, and I can tell you that a lot of the patents that we write in my business are just defensive. We file patents or sometimes just publish really basic ideas in order to prevent patent trolls from seeing what we are making, then patenting it and trying to extort us for money. It's kind of a plague on the whole auto industry.

Interesting that you have that much interaction with patents and you even write them. Are you a patent attorney. Writing patents is an art that requires a lot of training. I have about 16 patents (many assigned to previous employers) but it was a learning experience in each case.

I have personally visited the USPTO in Washington and spend time with patent examiners and their supervisors. I have been intimately involved with various Office Actions in response to my patents and obviousness had been a topic on occasion. The USPTO guidelines for obviousness are clearly defined and reasonable. It takes a little to really understand those guidelines, I don't profess to understand them fully, I am not an attorney but they are thorough and seem fair to me. Are they perfect? Not sure, nothing seems to be perfect but they are good. I guess not good enough for some. Until they change we need to agree to live by them. As you well know these guidelines are available for anyone to read and evaluate.

Thanks for your thoughtful exchanges. I hope our comments will help others appreciate the complexity of patent issues and more important to recognize that ignoring patents could be very costly to the infringer.

We do agree about the abuse of patents by Patent Trolls. They give patents a bad connotation. A Patent Troll was defined in the 1990's as someone who owns and tries to enforce patents that have nothing to do with their own profession. I abhor Patent Trolls and take offense being called such. My patents are strictly within the scope of my own profession.

Photo509 wrote in post #16802243Interesting that you have that much interaction with patents and you even write them. Are you a patent attorney?

No, I'm an engineer. I write up what you would think of as the rough draft of the patent and then our legal department manages the rest of the process. Patents are just a piece of overall strategy for large corporations.

The USPTO guidelines for obviousness are clearly defined and reasonable. It takes a little to really understand those guidelines, I don't profess to understand them fully, I am not an attorney but they are thorough and seem fair to me. Are they perfect? Not sure, nothing seems to be perfect but they are good. I guess not good enough for some. Until they change we need to agree to live by them. As you well know these guidelines are available for anyone to read and evaluate.

Thanks for your thoughtful exchanges. I hope our comments will help others appreciate the complexity of patent issues and more important to recognize that ignoring patents could be very costly to the infringer.

That's part of the problem I think. I know you and I disagree, but I see how things often work and this is how I see it:

1) People can (and do) write broad patents that are (IMO) too obvious.2) Then these people sue anyone that appears to be infringing. Most targets will settle because litigation is too expensive.3) People like you can continue for years asserting all the claims you are making here.....that your patent is not obvious, that there isn't any prior art, that the patent isn't too broad.

But here is the rub.....the only basis for all of these assertions that you are making is the research of one patent attorney who put in a bit of research at the USPTO. Until you litigate your patent against an aggressive defense, you claims are really unproven.

I have lived and seen it. We had one guy patent an obvious key engine technology despite prior art. Then he turned around and sued pretty much every car and truck company making this type of engine. Several companies did the math and just handed the guy money to go away. And the really funny thing is that I totally believe that this guy thought his idea was totally original and non-obvious. He just happened to be wrong. It was pretty obvious and (too bad for him in the end) it was not actually original.

My company knew we had prior art, so we litigated the case and we won. He had a patent just as legitimate as yours, until he made the mistake of suing one company that was sitting on evidence of prior art. Still, he made out like a bandit.

Until you have taken a case to court, your claims for originality and narrow scope are just claims.

Photo509 wrote in post #16800821If it was so obvious why didn't anyone else come up with the idea at the same time or before I did? Actually companies were sorting pictures by numbers as I describe in the beginning paragraphs of the patent. However, they didn't do it in a manner that I developed and patented. Also the mindset of people at the time of the invention was quite different from what it is now. Many of my biking friends thought my patents would never amount to much since people would not want to search for their pictures on the web. That's right, that was the mindset at the time in 1999. People were used to getting little proof images mailed to them in the mail with an application to order full size prints. The thought of searching for your picture online was pretty novel in 1999 but that of course changed over night once my website went live.

Take for example Post-It notes that were developed by 3M. What could be more simple than to take some paper and glue, put the two together in the 'obvious' way 3M did and produce one of the most successful products ever. It was patented and no one infringed because 3M had the muscle to go after infringers from the get-go.

By the time my patents issued (2006) the industry was entrenched in using the methods described in my patents. I had spend most of my money executing the patents through the USPTO and very little 'muscle' to enforce them. Some companies including the largest in the industry settled without any legal intervention. I was not able to do anything prior to 2006 other than say "Patent Pending".

Are you suggesting that 'obvious' ideas should not be patented? Of course the USPTO has clear standards of what is 'obvious' or not and many patent applications end up rejected for that very reason. The USPTO could not demonstrate that my ideas were obvious and the patents were issued. Now just because you and others feel they are 'obvious' should that be what we go by? You would need to agree that would cause chaos when we decide to have lay people interpret the law. The only hope of having a civil society is to adhere to the laws and have trained people interpret those laws. We may need to change certain laws in a civil manner but in the mean time we need to obey the laws.

Going back in this thread a bit....

This is actually an interesting argument, and I really do understand your point. If I can place myself in everyone else's shoes, the issue here is that I think everyone (post 1999) dealing with the internet, digital photography and numbered athletes has hit upon the same idea as you, probably after about 20 seconds of contemplation.

So what we have here are two new technologies (in 1999) of the internet and digital photography. And what I see is the USPTO kind of letting the influence of new technology get in the way of really looking at when something is a non-obvious idea.

Let's take Google as an alternate example. When the internet was really new (like five years before your patent) a lot of smart people thought it would never amount to anything. It took smart search engines that applied new, conceptually different ways of sorting data before the vast pile of crap on the internet could be searched.

If Google had just patented searching the internet for data by alphabetically order, or dewey decimal number, or even bib number for that matter, their search engine would be useless. That's because such data organization is intuitively obvious and not useful for something as complex as the whole web.

Your patented idea is just as simple and just as obvious. The only difference is that searching a single race by bib number is not only intuitively obvious, but it is also something that can work for such a limited data set.

Here is another way to think of it. Invention is almost never a 'Eureka!' moment. Most invention takes a lot of work, trial and experimentation. Did you really need to experiment all that much before thinking to organize runners by tagging bib numbers into the metadata? I'm betting once you had digital files and the internet, the idea was pretty much obvious, and I make that bet based on the fact that the same idea has occurred to just about every single photographer who has shot any sporting event with jersey or bib numbers since. I'd never heard of you or your patent before I read this thread, but I can assure you that the idea detailed in your patent has occurred to me spontaneously with very little thought. This is where I and the USPTO part ways on what they consider 'obvious', at least in practice.

Photo509 wrote in post #16800821If it was so obvious why didn't anyone else come up with the idea at the same time or before I did?

I'm not sure if you are ignorant or just playing dumb, but in case you don't know, which I doubt is true, pretty much everyone did "come up with this idea", just noone bother to put patent on it. So obviously you are not the only one who came up with such idea. You are just only one who used screwed up US patent law to slap patent on it so you are able to extort others.

JeffreyG wrote in post #16802784Your patented idea is just as simple and just as obvious. The only difference is that searching a single race by bib number is not only intuitively obvious, but it is also something that can work for such a limited data set.

Thanks Jeff for hanging in there and sharing your thoughts in a civil manner. Too bad some of the other folks have to resort less civil means.

As I mentioned before, you are oversimplifying the claims of the patent. There are many elements to the claims and anyone that infringes on the patent has to meet each element of a claim. It is the combination of elements of the claim that make the patent unique and novel. Any one of the elements may have existed long before my invention but the combination of elements were not used prior to the invention.

I think that is where others get confused and resort to their name calling and derogatory remarks towards me. They pick at one claim element and say: "How ridiculous, that is so obvious. How could this @!$!%!%$!# get a patent for that?" Of course that is ridiculous. Each element of the claim has to be satisfied for infringement to occur (that's my layman, non-legal understanding). Me coming up with with various elements of the claims was unique, novel and new. It took me about a year of experimenting and trying various things before everything clicked in place. The USPTO agreed that the combination of claim elements I developed was indeed worthy of a patent. They are not easy to convince and no one should underestimate the USPTO patent examiners. Anyone who has applied for patents will attest to that.

So, bottom line, please don't consider only one element of the claims (which you and others have been doing) but look at the entire package. Only the entire package is patented and non-obvious.

One example I can think of is a house built from various bricks and someone comes along and says this house is very unique. Another person comes along and says, there is nothing unique about this house most of the bricks are alike, anyone can build that house. Patents are like houses and not like bricks. Patents have a combination of parts (claim elements) that make them unique even if any one of the parts is not unique. Again, I am not an expert and this example is only according to my limited knowledge about patents. You focus on one element of the patent claim in your discussions and conclude that because that one element seems obvious the entire patent is obvious. I would respectfully disagree.

I have to admit, I have not read the claims in detail either so I may also be jumping to conclusions. But then if the whole process is more than just sorting runners by bib numbers, it's strange that people are infringing.

On edit, I have read it. And to me it still looks too obvious. I think if we had a 1999 claim for organizing proofs in a microfiche machine by bib number then the patent office would have rejected it for obviousness. I think they took the obvious idea of organizing runners by finish time or number and crossed it with 'internet' and issued a patent for an obvious idea.

But let's try a hypothetical to see if I am grasping your position. Imagine photo company XYZ arranges to take pictures at a large race with the event organizers.1) XYZ takes pictures of many runners in the race2) XYZ tags the metadata of each photo with the runner's bib number3) XYZ posts the photos in order by bib number on their website which allows purchase of prints.

Are these three steps alone enough to satisfy what you are calling "Each element of the claim has to be satisfied for infringement to occur."? Or would the process I just described not infringe on your patent in your opinion?

I ask this hypothetical because to me it seems obvious, and if you feel that this is an infringement then I would say the patent was too obvious and should not have been issued. It's like:

1) Rent or purchase a building, stock the building with food items.2) Arrange food by type, produce in one area, meat in another, dairy in yet another.3) Allow people to select food items and purchase them at a checkout.

There, I just patented the grocery store. Except there is prior art. The problem with the net is that by adding 'internet' to obvious concepts like stocking items for sale in a searchable fashion, you can get around prior art by saying it is online. But in the end it is still obvious.

JeffreyG wrote in post #16805116I have to admit, I have not read the claims in detail either so I may also be jumping to conclusions. But then if the whole process is more than just sorting runners by bib numbers, it's strange that people are infringing.

On edit, I have read it. And to me it still looks too obvious. I think if we had a 1999 claim for organizing proofs in a microfiche machine by bib number then the patent office would have rejected it for obviousness. I think they took the obvious idea of organizing runners by finish time or number and crossed it with 'internet' and issued a patent for an obvious idea.

But let's try a hypothetical to see if I am grasping your position. Imagine photo company XYZ arranges to take pictures at a large race with the event organizers.1) XYZ takes pictures of many runners in the race2) XYZ tags the metadata of each photo with the runner's bib number3) XYZ posts the photos in order by bib number on their website which allows purchase of prints.

Are these three steps alone enough to satisfy what you are calling "Each element of the claim has to be satisfied for infringement to occur."? Or would the process I just described not infringe on your patent in your opinion?

I ask this hypothetical because to me it seems obvious, and if you feel that this is an infringement then I would say the patent was too obvious and should not have been issued. It's like:

1) Rent or purchase a building, stock the building with food items.2) Arrange food by type, produce in one area, meat in another, dairy in yet another.3) Allow people to select food items and purchase them at a checkout.

There, I just patented the grocery store. Except there is prior art. The problem with the net is that by adding 'internet' to obvious concepts like stocking items for sale in a searchable fashion, you can get around prior art by saying it is online. But in the end it is still obvious.

You missed some important elements of the claims. Re-read the claims carefully and identify each element. What you described may seem pretty obvious but I don't think it is enough for athletes to find their pictures. Our claims are much more specific and have several more elements. Read on, you're getting there. BTW, the USPTO was not blind sighted by only focusing on the Internet. You can tell by the various patents they sited in their search. They cover a very brought spectrum of the industry.

When you read the patents, there's lots of ways to get pictures to participants that don't infringe. As technology advances none of the techniques detailed in the patent will even be around. I give them 4 more years max. Cheers

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